The family violence exception

How the exception works

20.8 The family violence exception is set out in the criteria for the relevant visa under sch 2 of the Migration Regulations. The exception is usually expressed as an alternate ground to the requirement for a ‘genuine and continuing’ spouse or de facto relationship, needed for obtaining permanent residence. The Department of Immigration and Citizenship (DIAC) guidelines for decision makers—the Procedures Advice Manual 3 (PAM)—state that the family violence exception allows for the grant of a permanent visa to be considered if:

(a) the partner relationship has broken down; and

(b) depending on the visa class applied for:

the visa applicant; or

a dependent child of that applicant/or that applicant’s ex-partner; or

a member of the family unit of that applicant and/or of that applicant’s ex-partner

has suffered family violence committed by the visa applicant’s ex-partner.[12]

20.9 In addition to the partner visa class, the family violence exception can currently be invoked in certain skilled stream (business) visa classes.[13] In those cases, the secondary visa applicant can rely on the family violence exception if the relationship has ceased, and the secondary visa applicant, or a member of his or her family unit, has suffered family violence committed by the primary visa applicant.[14]

20.10 In order to meet the family violence exception, applicants must satisfy the requirements for a judicially or non-judicially determined claim of family violence prescribed in regs 1.23(2)–(14).[15]

20.11 DIAC statistics show that only a small percentage of partner visa cases involve family violence claims. Although the number of claims has been steadily increasing since 2005, on average, they account for approximately 1.5% of all partner visa cases.[16]

Policy tensions

20.12 In Chapter 1, the ALRC outlines some of the key themes and policy tensions that are common in each of the Inquiry areas. The policy challenge in this area is to ensure accessibilityto the family violence provisions for genuine victims of family violence while preserving the integrity of the visa system.

20.13 Accessibility is a broad concept, but in this context, refers to a number of things that may help to ensure that a victim can take measures to protect his or her safety, including:

  • removing barriers to accessing the family violence exception;
  • improving the ability of victims to access family violence services;
  • empowering victims to access the Australian legal system through better education and information dissemination;
  • ensuring that visa decision makers, and the legal system in general, are aware of, and sensitive to family violence issues.

20.14 Integrity concerns relate to ensuring that the visa system is not open to abuse or manipulation. As DIAC articulated in its submission, the finite number of permanent visas granted may mean that, ‘some applicants will seek to contrive or exaggerate claims to meet visa requirements’.[17] As a result

non-genuine applications have the potential to disadvantage genuine applicants who are waiting for their decisions on their visa applications and to reduce the benefit to Australia which the government hopes to deliver through the Migration Program.[18]

20.15 DIAC stressed that an ideal system is one that ‘would be sufficiently simple that it could be accessed by all applicants without generating an “industry” while providing robust assessment of claims and correct identification of non-genuine applications’.[19]

[12] Department of Immigration and Citizenship, Procedures Advice Manual 3 (2010)—The FV Provisions in Migration Law, [2.1].

[13] These are: Established Business in Australia (Subclass 845); State/Territory Sponsored Regional Established Business in Australia (Subclass 846); Labour Agreement (Subclass 855); Employer Nomination Scheme (Subclass 856); Regional Sponsored Migration Scheme (Subclass 857); and Distinguished Talent (Subclass 858).

[14] See, eg, Migration Regulations 1994 (Cth) sch 2 cl 846.321(3). Schedule 2 of the Migration Regulations prescribes, for all visa subclasses, ‘primary’ and ‘secondary’ criteria that must be met for the grant of a visa. A ‘secondary visa applicant’ is a person who is included in a visa application as a member of the family unit of a primary visa applicant, and is dependent therefore on the migration status of the primary visa applicant. In most instances, secondary visa applicants are the spouse and/or children of the primary visa applicant.

[15] The evidentiary requirements are discussed in Ch 21.

[16] Based on statistics from DIAC’s Annual Report for the period from 2005–09, and comparing the number of family violence claims with the total number of partner visa applications made.

[17] DIAC, Submission CFV 121.

[18] Ibid. Attachment A includes a table showing the number of claims against the family violence exception since 2008–09 years, including the number of cases referred to the Department of Human Services (Centrelink).

[19] DIAC, Submission CFV 121.